EXHIBIT 10.23.8
AMENDMENT #8 TO THIRD RESTATED AND
AMENDED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT #8 TO THIRD RESTATED AND AMENDED LOAN AND SECURITY
AGREEMENT (this "AMENDMENT"), dated as of May 2, 2006, by and among GMAC
COMMERCIAL FINANCE LLC, as successor by merger to GMAC Commercial Credit LLC,
which was the successor in interest to BNY Financial Corporation ("GMAC CF"), as
Agent and Lender, THE CIT GROUP/BUSINESS CREDIT, INC., as successor in interest
to PNC Bank, National Association ("CIT", and together with GMAC CF, "LENDERS"),
as Lender and Co-Agent, JACO ELECTRONICS, INC. ("JACO"), NEXUS CUSTOM
ELECTRONICS, INC. ("NEXUS") and INTERFACE ELECTRONICS, INC. ("INTERFACE", and
together with Jaco and Nexus, "BORROWERS"). Each capitalized term herein shall,
unless otherwise defined, have the meaning ascribed thereto in the Loan
Agreement, as hereinafter defined.
W I T N E S S E T H :
WHEREAS, Borrowers, GMAC CF, PNC Bank, National Association and Jaco de
Mexico, Inc. entered into that certain Third Restated and Amended Loan and
Security Agreement, dated December 22, 2003 (the "THIRD RESTATED AGREEMENT"), as
amended by (i) Amendment #1 to the Third Restated Agreement, dated September 20,
2004, (ii) Amendment #2 to the Third Restated Agreement, dated November 23,
2004, (iii) Amendment #3 to the Third Restated Agreement, dated February 11,
2005, (iv) Waiver and Amendment #4 to the Third Restated Agreement, dated as of
May 10, 2005, (v) Waiver and Amendment # 5 to the Third Restated Agreement,
dated September, 2005, (vi) Waiver #6 to the Third Restated Agreement, dated as
of November 14, 2005, and (vii) Amendment #7 to the Third Restated Agreement,
dated as of February 13, 2006 (as heretofore amended and as hereafter restated,
supplemented, extended, renewed, amended and otherwise modified from time to
time, the "LOAN AGREEMENT"), and into various instruments, agreements and other
documents executed and/or delivered in connection therewith (all of the
foregoing, together with the Loan Agreement, as the same now exist or may
hereafter be amended, restated, renewed, extended, substituted, modified or
supplemented from time to time, collectively, the "LOAN DOCUMENTS"); and
WHEREAS, Borrowers have requested that Lenders agree to amend certain
terms of the Loan Agreement, and Lenders have agreed to accommodate Borrowers'
request subject to the terms and conditions set forth herein, all as more
particularly set forth below.
NOW THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Amendment.
Effective as of April 24, 2006, the second sentence of Section 2.10 of
the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"The aggregate amount of Letters of Credit outstanding at
any time shall not exceed $3,000,000 (the "Letters of Credit
Sublimit")."
2. Borrowers' Acknowledgements and Reaffirmations.
(a) Each Borrower hereby acknowledges, confirms and agrees
that as of the date of Borrowers' execution hereof, none of the Obligations are
subject to offset, defense or counterclaim of any kind, nature or description
whatsoever.
(b) Each Borrower hereby ratifies and confirms the Loan
Agreement and each of the other Loan Documents as being legal, valid and binding
joint and several obligations of Borrowers, enforceable against Borrowers in
accordance with their respective terms as modified hereby. Each Borrower hereby
confirms that there are no defenses to the performance of any of such Borrower's
obligations under the Loan Agreement or any of the other Loan Documents. Each
Borrower hereby ratifies and confirms such Borrower's grant to Agent, for the
ratable benefit of Agent, Lenders and each Issuer, of first priority perfected
liens upon, and security interests in, the properties and assets of such
Borrower heretofore mortgaged, pledged, granted or assigned to Agent under the
Loan Agreement and the other Loan Documents, and acknowledges and confirms that
such first priority perfected liens and security interests secure, and shall
continue to secure, the Obligations, subject only to such prior security
interests as are expressly permitted under the Loan Documents.
(c) By its signature below, each Borrower ratifies and affirms
to the Agent and the Lenders that as of the date hereof, it is in full
compliance with all covenants under the Loan Documents, and certifies (i) that
all representations and warranties of Borrowers in the Loan Documents are true
and accurate as of the date hereof, with the same effect as if they had been
made as of the date hereof, (ii) no Default or Event of Default has occurred and
is continuing, or would result from the execution, delivery and performance by
Borrowers of this Amendment; (iii) each Borrower has full power, right and legal
authority to execute, deliver and perform its obligations under this Amendment;
(iv) each Borrower has taken all action necessary to authorize the execution and
delivery of, and the performance of its obligations under, this Amendment; and
(v) this Amendment does not constitute a breach of any other agreement or
understanding to which such Borrower is a party or by which any property of such
Borrower is bound.
3. Ratifications. By their signatures below, each Borrower hereby
ratifies the Loan Agreement ( as hereby amended) and agrees (i) to be jointly
and severally liable for all Obligations under the Loan Agreement, and (ii) that
all of the outstanding amounts of the Loans under the Loan Agreement, as of the
date hereof, are the valid and binding Obligations of each of them, and (iii) to
repay to the Agent, for the benefit of the Lenders, such Obligations (including
but not limited to all applicable interest) in accordance with the terms of the
Loan Agreement, but in no event later than the Termination Date.
4. No Other Modifications. Except as specifically set forth herein, no
other changes or modifications to the Loan Agreement or the other Loan Documents
are intended or implied, and, in all other respects the Loan Agreement and the
other Loan Documents shall continue to remain in full force and effect in
accordance with their respective original terms except as heretofore amended in
writing. Nothing contained herein shall evidence a waiver by either Lender of
any other provision of the Loan Agreement or any of the other Loan Documents.
5. No Third Party Beneficiaries. The terms and provisions of this
Amendment shall be for the benefit of the parties hereto and their respective
successors and assigns; no other person, firm, entity or corporation shall have
any right, benefit or interest under this Amendment.
6. Condition to Effectiveness. The effectiveness of the terms and
provisions of this Amendment shall be subject to the receipt by Agent of an
original of this Amendment, duly authorized, executed and delivered by
Borrowers.
7. Counterparts. This Amendment may be signed in counterparts, each of
which shall be an original and all of which, when taken together, shall
constitute one agreement. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart signed by the
party to be charged. Delivery of an executed counterpart of this Amendment by
electronically confirmed telefacsimile shall have the same force and effect as
the delivery of an original executed counterpart of this Amendment.
8. Merger. This Agreement sets forth the entire agreement and
understanding of the parties with respect to the matters set forth herein. This
Amendment cannot be changed, modified, amended or terminated except in a writing
executed by the party to be charged.
IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment on the date hereinabove written.
GMAC COMMERCIAL FINANCE LLC,
as Agent and Lender
By: /s/ Xxxxxx X. Xxxxxx
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Title: 1st VP
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AGREED AND ACCEPTED:
THE CIT GROUP/BUSINESS/CREDIT, INC., as Lender
By: /s/ G. Xxxxx XxXxxxxx
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Title: Vice President
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JACO ELECTRONICS, INC., Borrower
By:/s/ Xxxxxxx X. Xxxx
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Title: CFO
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NEXUS CUSTOM ELECTRONICS, INC., Borrower
By: /s/ Xxxxxxx X. Xxxx
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Title: Executive VP
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INTERFACE ELECTRONICS, INC., Borrower
By: /s/ Xxxxxxx X. Xxxx
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Title: Executive VP
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[Amendment #7 to Third Restated and Amended Loan and Security Agreement]
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